Javier Madrid v. The State of Texas--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JAVIER MADRID, )

) No. 08-04-00279-CR

Appellant, )

) Appeal from the

v. )

) 346th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20030D02109)

)

O P I N I O N

Javier Madrid appeals his conviction for murder. A jury found him guilty and sentenced him to 60 years= imprisonment and a $10,000 fine. Here, he raises three issues arguing that the trial court: erred in admitting testimonial hearsay evidence in violation of his right to confrontation; erred in admitting his written confession because it was involuntary and obtained by coercive methods; and erred by failing to make sufficient findings of fact and conclusions of law regarding the voluntariness of his confession. We affirm.

 

In the early morning on April 26, 2002, Gabriel Carrillo was fatally shot while parked at a car wash. Witnesses saw a Ford Bronco leaving the scene after the sound of gunshots. In February 2003, the police received a Crime Stoppers tip about the murder, which provided detailed information as to who was the killer, where the murder weapon was located, and the vehicle used in the shooting. Specifically, the tip alleged that Arturo Madrid, Sr. pawned the weapon at a Cash America and Appellant, his son, had committed the murder. In addition, the tip gave the license plate number of the Ford Bronco allegedly used in the offense. Detective Arturo Ruiz followed up on the information and confirmed that Arturo had pawned a .357 magnum caliber revolver at the Cash America pawn shop. Ballistics tests established that bullet fragments recovered from the victim were fired from the gun. DNA analysis showed that the blood found on the gun also matched that of the victim. With regard to the information on the vehicle, Detective Ruiz verified the vehicle registration and ownership and learned that it was registered to Arturo Madrid, Sr. Further investigation revealed that several members of the Madrid family, including Appellant, had access to the gun and drove the vehicle.

On March 6, 2003, Appellant was found on McRae, pushing a Ford Bronco, and was arrested for outstanding traffic warrants. When Detective Robert Posada arrived, Appellant was already in the backseat of the patrol car. Detective Posada took Appellant out of the car, uncuffed him, handed him a Miranda card, and asked him to read it. After Appellant finished reading the card, Detective Posada asked him if he understood his rights and Appellant said that he did. Appellant signed and initialed the warning card. Detective Posada then advised Appellant that he would be taken to Crimes Against Persons (ACAP@) office to talk about his vehicle being involved in another offense. Subsequently, Appellant=s wife, Maribel Martinez, voluntarily accompanied detectives to the CAP office. Other members of Appellant=s family were also interviewed separately at the CAP office. Arturo Madrid, Sr. gave a statement in which he said the gun belonged to Appellant, but that Appellant kept it in his house for two months. At trial, Mr. Madrid, Sr. denied having any knowledge of the murder.

 

At the CAP office, Detective Ruiz uncuffed Appellant and told him his Miranda rights again. After indicating that he understood his rights, Appellant began speaking with Detective Posada. At first, Appellant denied any knowledge of the murder. Detective Posada then revealed to Appellant that the gun had been recovered, that the victim=s blood was found on the gun, that Appellant=s father had pawned the gun, that a surveillance camera showed a Bronco and the victim=s Camaro at the scene, and ballistics tests showed a match between the pawned gun and the bullet fragments recovered from the victim=s body. After Appellant was shown a photograph of the victim and was told that his father might be a suspect in the crime, he confessed to shooting the victim. Appellant then agreed to give a statement.

In his statement, Appellant stated that on the morning of April 26, 2002, he left work at 1:30 a.m. and was driving his father=s Ford Bronco. On the way home, the victim drove up next to him in a Camaro. The victim kept looking at Appellant and Awas talking shit@ and moving his arms at him. This continued as Appellant drove further down the road. The victim started to point toward a car wash, telling Appellant to turn into the car wash. Appellant followed the victim to the car wash and parked next to him. Once he stopped, Appellant grabbed the .357 revolver that was underneath the driver=s seat, approached the victim, and shot him twice from three feet away. Appellant then got back into the Bronco, reversed, hit a wall, and drove off. The following day, Appellant told his brother Arturo that he had shot somebody. He later had his father pawn the gun at Cash America.

 

On the morning of March 7, 2003, Detective Joe Baca interviewed the Appellant=s brother, Arturo Madrid, Jr. Mr. Madrid, Jr. was cooperative and voluntarily gave a statement. Detective Baca learned from the interview that Appellant told him about the shooting and that his brother had kept the gun at his house for two weeks. Afterwards, Mr. Arturo Madrid, Jr. took the police to his former residence where they found buried in the backyard six spent shell casings from the gun.

In Issue Two, Appellant contends that the trial court erred in admitting his alleged written confession because it was involuntarily given. Specifically, Appellant asserts that the confession was obtained in a coercive manner which offends due process, was not videotaped or tape-recorded, and was based on mere allegations by the State.

We review the trial court=s ruling on a motion to suppress for an abuse of discretion. Guzman v. State, 955 S.W.2d 85, 88 9 (Tex.Crim.App. 1997). Under this standard, we give almost total deference to the trial court=s determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Id. at 89. We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id.; Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). When the trial court does not make explicit findings of fact, we review the evidence in a light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323, 327 28 (Tex.Crim.App. 2000). The trial court=s ruling will be upheld if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855 56 (Tex.Crim.App. 2000).

 

The voluntariness of a confession is determined by considering the totality of the circumstances under which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex.Crim.App. 1997); Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995), cert. denied, 516 U.S. 977, 116 S. Ct. 480, 133 L. Ed. 2d 408 (1995). The ultimate question in determining voluntariness of the statement is whether the defendant=s will was overborne. See Creager, 952 S.W.2d at 856, citing Armstrong v. State, 718 S.W.2d 686, 693 (Tex.Crim.App. 1985). Factors in determining whether the defendant=s will was overborne include: length of detention; incommunicado or prolonged interrogation; denying access to a family member; refusing a defendant=s request to telephone a lawyer or family member; and physical brutality. Pace v. State, 986 S.W.2d 740, 747 (Tex.App.--El Paso 1999, pet. ref=d).

The trial court conducted a hearing on Appellant=s motion to suppress his written statement. Detective Posada testified that in the course of investigating the car wash murder, he received an anonymous tip from Crime Stoppers, which alleged that Appellant shot the victim and had used his father=s Bronco in committing the crime. The tip also alleged that Appellant=s father had pawned the murder weapon. Detective Posada located and retrieved the gun. Subsequently, ballistics tests established that the bullet fragments recovered from the victim=s body had been fired from the retrieved gun and DNA analysis showed that blood found on the gun matched that of the victim. Detective Posada requested assistance from the ROP unit to start surveillance on Appellant. On March 6, 2003, Appellant was arrested for outstanding traffic warrants while pushing the Bronco, which had stalled on the road.

 

When Detective Posada arrived at the scene of arrest, Appellant was sitting in the back seat of the patrol car. He uncuffed Appellant, handed him a Miranda warning card, and walked him over to the front of the patrol car. The detective asked Appellant to read the card. Appellant said he could read English and after he finished reading the card, Detective Posada asked Appellant if he understood it and Appellant said that he did. Appellant signed the card. Detective Posada then told Appellant that he was under arrest for traffic citations and was going to be transported to the CAP office because the detectives were investigating a crime involving the Bronco. After learning that Appellant was married and where his wife was located, Detective Posada handcuffed Appellant and placed him back into the patrol car.

While Appellant was being transported to the CAP office, Detectives Posada and Ruiz went to the home of Maribel Martinez, Appellant=s wife. Once there, the detectives told her that Appellant had been arrested for the traffic tickets and that they were investigating a separate crime. They asked her if she was willing to go to the CAP office to speak with them. Ms. Martinez requested a ride to the CAP office and voluntarily accompanied the detectives after placing her one-month-old baby in her mother=s care.

 

Appellant was already at the CAP office when the detectives arrived with Ms. Martinez. Detective Ruiz placed Appellant in the interview room while Detective Posada escorted Ms. Martinez to a cubicle to speak with her. After speaking with Ms. Martinez, the detectives entered the interview room where Appellant was being held. Detective Ruiz removed the handcuffs and gave Appellant his Miranda rights again. Appellant said he understood his Miranda rights and waived those rights. The detectives told Appellant that they were investigating a crime and informed Appellant that they had located the gun, that the gun positively matched the bullet fragments found in the victim, and that the victim=s DNA was found on the gun. The detectives also told Appellant that the Bronco was believed to be involved and that Appellant=s father was being looked into as a suspect because he had pawned the gun. Appellant explained that his father had pawned the gun for rent money. Appellant was then shown a photograph of the victim and was asked if he knew who he was. Appellant responded no and the detectives again told Appellant that because his father had pawned the gun, there was a possibility that his father Acould get in trouble for this . . . .@ At that point, Appellant started telling the detectives that he was the one that had shot the victim and told them what had happened. Appellant then agreed to give a statement and was escorted to Detective Posada=s cubicle.

According to Detective Posada, the interview lasted about one hour and at no point did Appellant request an attorney or ask to cease the interview. Detective Posada testified that he did not coerce or threaten Appellant and did not promise him anything directly or indirectly to get him to speak. Appellant was uncuffed the entire time, was offered an opportunity to go to the bathroom, and Detective Ruiz bought him a soft drink. Although Appellant was informed that family members were present at the CAP office, Detective Posada stated that at no point was Appellant denied access to them nor was he denied access to the telephone.

At the cubicle, Appellant was seated next to Detective Posada. The monitor screen was visible as the detective typed the statement. After Detective Posada finished typing, he printed out the statement and gave it to Appellant. Specifically, Detective Posada told Appellant to read it completely and to tell him or correct the statement itself if anything needed to be changed or corrected. Appellant did not correct or change the statement. After he proofread it, Appellant wrote the time the interview started, the time the statement was finished, and put his initials next to the date on the statement. Appellant initialed next to each constitutional right in the statement, to indicate that he understood those rights, and then initialed the beginning and end of each paragraph of the body of the statement. In the presence of Detectives Baca and Ruiz, Appellant was asked if he wanted the completed statement submitted as his statement, and he said yes. Appellant then signed the statement, which was witnessed by the two other detectives.

 

Detective Posada testified that at no time did he use physical brutality against Appellant to make him give the statement. Detective Posada saw no mental characteristics that would suggest Appellant was incapable of understanding what was happening or of making a statement. Detective Posada denied forcing Appellant to sign the statement or threatening him in any manner. Likewise, Detective Ruiz testified that Appellant was not threatened that either his wife or father would be arrested if he did not give a confession. Detective Ruiz also denied ever threatening Ms. Martinez with arrest. Detective Baca testified that Appellant did not appear to be under any type of duress or force when he witnessed Appellant signing the statement. On cross-examination, Detective Posada conceded that the taking of the statement was not videotaped or audio recorded.

Appellant testified at the suppression hearing. According to him, the detectives never advised him of his Miranda rights before taking him to the interview room at the CAP office. Appellant also stated that he was never asked to waive his rights before talking to the detectives. Appellant read and initialed the paragraph containing the Miranda warnings in the statement, but the detectives never asked whether he was waiving those rights. Contrary to Detective Posada=s testimony, Appellant testified that his right hand was cuffed to the chair during the interview. The detectives sat close to him and tried to intimidate him with anger. Appellant only agreed to give a statement because the detectives threatened to put his wife and father in jail and he was scared for them and himself. Appellant was told that they would let him talk to his wife for thirty minutes if he gave a statement. Appellant was also told that he would only get four years in jail if he gave a statement.

 

Maribel Martinez also testified on behalf of the defense. According to Ms. Martinez, the detectives told her that they believed Appellant had committed the murder at the car wash and asked her what she knew about it. She told them that she did not know anything and they told her that if she did not give a statement and testify against Appellant, she would be arrested and so would Appellant=s father.

At the conclusion of the hearing, the trial court denied Appellant=s motion to suppress his written statement.

Voluntariness of Confession

Appellant asserts on appeal that the trial court erred because the totality of circumstances indicate that the State did not obtain a voluntary confession. Specifically, he claims that the State deliberately concealed its methods of interrogation by not videotaping or tape-recording the confession and by not having Appellant write a statement in his own handwriting. Appellant contends that any of these methods would have made it difficult for the State to fabricate a statement and then attribute it to him by coercing him to initial and sign it.

 

Article 38.22, section 2 of the Texas Code of Criminal Procedure governs the admissibility of Appellant=s written statement. Under this section, a written statement is inadmissible unless the accused, prior to making the statement, either received warning from a magistrate or received the Miranda warnings, and prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived his rights as set out in the warnings. See Tex.Code Crim.Proc.Ann. art. 38.22, ' 2 (Vernon 2005). The statute does not require that the accused=s written statement be videotaped or tape-recorded, and in his brief, Appellant concedes to the same.[1] Further, there is no evidence to support Appellant=s claim that the State deliberately sought to conceal the circumstances of his interrogation by failing to videotape or otherwise record it.

Next, Appellant asserts that his confession was not voluntary because the detectives threatened his immediate family members, namely his wife and father, with arrest. At the suppression hearing, Appellant testified that Detectives Posada and Ruiz threatened to arrest his wife and father if he did not give a statement and made promises that he would be allowed to talk to his wife and would only get fours years in jail if he gave a statement. Ms. Martinez testified that the detectives threatened to arrest her and Appellant=s father if she did not give a statement and testify against Appellant. However, Detective Posada denied forcing Appellant to sign the statement or threatening him in any manner. He also testified that he did not coerce or threaten Appellant and did not directly or indirectly promise Appellant anything. Similarly, Detective Ruiz testified that Appellant was not threatened that either his wife or father would be arrested if he did not confess to the crime. As the sole judge of the weight and credibility of the witnesses= testimony, the trial court could have accepted the detectives= testimony and disbelieved Appellant=s testimony. See Guzman, 955 S.W.2d at 89.

 

In considering the totality of the circumstances, we also observe the following evidence: (1) Detective Posada testified that he gave Appellant a Miranda warning card at the scene of the arrest, Appellant indicated that he understood his rights, and signed and dated the card; (2) at the CAP office, Detective Ruiz told Appellant the required statutory warnings again before conducting the interview and Appellant said he understood his rights and agreed to waive them; (3) Appellant was interviewed for about one hour before his statement was taken and the entire process lasted about three hours; (4) Appellant was not handcuffed during the interview and taking of his statement; (5) Appellant was given a soft drink and was permitted to use the bathroom; (6) Appellant was never denied access to family members who were present and was not denied access to the telephone; (7) Appellant did not ask for a lawyer and did not ask to cease the interview; (8) Detective Posada did not use physical brutality against Appellant, did not threaten Appellant, and did not force Appellant to sign the statement; (9) Appellant read the completed statement and initialed the beginning and end of each paragraph, including the paragraph containing the Miranda warnings; (10) Appellant did not appear to be under duress or force when he signed the statement; and (11) Detective Posada saw no mental characteristics in Appellant that would suggest Appellant was incapable of understanding what was happening or of making a statement.

 

There was evidence that Appellant did not confess until the detectives told Appellant they were investigating his father as a possible suspect because he had pawned the murder weapon. A threat made by a police officer to arrest or punish a close relative may render an accused=s subsequently made confession inadmissible. Roberts v. State, 545 S.W.2d 157, 161 (Tex.Crim.App. 1977). However, where no express or implied promise or threat is made by the police, an accused=s belief that his cooperation will benefit a relative will not render his subsequent confession inadmissible. Id. In this case, the detectives= investigation had already led to evidence of involvement by Appellant=s father and therefore, the comment concerning Appellant=s father as a possible suspect was not an express or implied threat, but rather could have been a general statement about the status of the investigation and an attempt to find out whether Appellant=s father had committed a crime. Moreover, Appellant=s activities placed his father under suspicion, thus Appellant=s desire to extricate his relative does not necessarily render his self-motivated confession inadmissible. See Roberts, 545 sw2d at 161.

After considering the totality of the circumstances, we conclude that the trial court could have reasonably determined that Appellant=s will was not overborne by coercive interrogation methods and thus, the trial court acted within its discretion in finding that Appellant=s written statement was voluntarily given. Issue Two is overruled.

Findings of Fact and Conclusions of Law

In his third issue, Appellant contends that the trial court=s findings of fact and conclusions of law on the voluntariness of his statement are insufficient for appellate review. Specifically, he asserts that the trial court=s findings amount to a bare recitation of the statutorily required findings without sufficient connection to the particular facts of this case, that is, the trial court should have make specific findings as to whether or not detaining Appellant=s family while he was being interrogated and the State=s failure to videotape the alleged confession, vitiated the voluntariness of his confession.

 

When the voluntariness of a statement made by an accused is questioned, the trial court is required to make an independent finding, outside the jury=s presence, as to whether the statement was made under voluntary conditions. See Tex.Code Crim.Proc.Ann. art. 38.22, ' 6. If the trial court determines that the statement was made voluntarily, it must then enter findings of fact and conclusions of law. See id. The findings must be sufficiently detailed to enable this Court to determine the basis for the trial court=s ruling and to assist Ain determining the sufficiency of the evidence to support whatever unstated findings of fact were made by the fact finder.@ Guidry v. State, 9 S.W.3d 133, 141 (Tex.Crim.App. 1999), cert. denied, 531 U.S. 837, 121 S. Ct. 98, 148 L. Ed. 2d 57 (2000), quoting Hester v. State, 535 S.W.2d 354, 356 (Tex.Crim.App. 1976). Section Six, however, does not require the trial court to make specific findings about why conflicting testimony does not render the defendant=s statement involuntary. Id. ARather, the trial court need only state in its findings the reasons for its conclusion that the statement was voluntary.@ Id.

Here, the trial court=s findings of fact and conclusions of law contained thirteen findings of fact. It included findings that: Appellant was given his Miranda warnings prior to making any oral statements and prior to giving the written statement; prior to giving any and all oral and written statements, Appellant intelligently, knowingly, and voluntarily waived his constitutional rights; Appellant was not coerced in any fashion when making his written and oral statements; no promises were made to Appellant in exchange for making his written and oral statements; Appellant was coherent and understood what was happening while making the oral and written statements; Appellant=s decision to give the oral and written statements was not influenced by any factor other than his desire to give the statements; at no time did Appellant request the presence of counsel; and at no time did Appellant request to terminate the interviews.

 

The trial court=s findings address the issue of whether or not Appellant was threatened or coerced into giving his written statement. The trial court was not required to specifically address those facts which Appellant believes would show such coercion. See Guidry, 9 S.W.3d at 142 (trial court need not outline the testimony which does not support its conclusions). We conclude that the trial court=s findings of fact were sufficiently detailed to enable this Court to determine the basis for the trial court=s rule that Appellant=s written statement was voluntary. Issue Three is overruled.

In Issue One, Appellant argues that the trial court erred in admitting testimonial hearsay evidence in violation of his Sixth Amendment right to confrontation. Specifically, Appellant complains of the admission of testimony concerning the anonymous Crime Stoppers tip received by police and statements by Arturo Madrid, Jr. during his interview with the police.

We review a trial court=s ruling to admit or exclude evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991)(op. on reh=g). An abuse of discretion exists when the trial court=s decision was so clearly wrong as to lie outside the zone of reasonable disagreement, in other words, the trial court=s decision or action was arbitrary, unreasonable, and made without reference to any guiding rules or principles. Id.

Out-of-court testimonial statements by a declarant who fails to testify violate the Sixth Amendment=s Confrontation Clause unless the declarant is unavailable to testify and the accused had a prior opportunity to cross-examine the declarant. See Crawford v. Washington, 541 U.S. 36, 68, 124 S.C.t 1354, 1373-74, 158 L. Ed. 2d 177 (2004).

 

At trial, Detective Ruiz testified about the anonymous Crime Stoppers tip that the police received in reference to the murder. Detective Ruiz stated that the tipster had detailed information as to who might be involved in the crime. Before further testimony was elicited, Appellant objected on hearsay grounds. The State prosecutor argued that information obtained from the tip was not being offered to show the truth of the matter asserted therein, but rather to show what Detective Ruiz did based upon the information contained in the tip. The trial court overruled Appellant=s objection and admitted the testimony about the information provided in the tip. During cross-examination, Detective Ruiz was questioned extensively about the information contained in the tip.

We find that Appellant=s confrontation complaint with respect to the Crime Stoppers tip was waived. To preserve a complaint concerning the admission of evidence, a party must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired of the court. See Tex.R.App.P. 33.1(a)(1)(A). A general hearsay objection does not preserve error on Confrontation Clause grounds. Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App. 2005). Moreover, an appellant waives any error regarding improperly admitted evidence if, as in this case, that same evidence is brought in later by the defendant or by the State without objection. Rogers v. State, 853 S.W.2d 29, 35 (Tex.Crim.App. 1993)(en banc); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991).

Next, Appellant complains that the trial court erred in admitting testimony from Detectives Posada and Baca concerning statements by Arturo Madrid, Jr. to the police during his interview. During the defense=s case-in-chief, the following exchange occurred during the State prosecutor=s cross-examination of Detective Posada:

The State: What did Javier Madrid say--Arturo Jr. say in his statement in regards to Javier?

Defense: Objection, Your Honor, hearsay.

The Court: Overruled.

 

Posada: He said that Javier Madrid showed up to where he was living on Grenoble, 9232 Grenoble, and that he had a concerned look on his face. That he was waiting for him to give him a hug like he usually does, and he did not give him a hug because he looked worried and that he had--he told him that he had shot somebody the night before. And he gave him the gun to hold for some time, and the defendant had a tissue with six case--or he doesn=t say six casings, he said he had some casings in the tissue that he needed to get rid of so--

Defense: Excuse me, Detective. Your Honor . . . I=m going to be object under the Texas Constitution, the confrontation clause. I=m going to object under the United States Constitution, Sixth Amendment confrontation clause, you know.

The trial court overruled Appellant=s confrontation clause objection. On redirect examination, the following exchange occurred between defense counsel and Detective Posada:

Defense: Okay. Now, everything that you testified to this jury that my client said to Arturo; that he didn=t give him a hug, that he was nervous, that he gave him all these six casings in a shell [sic], you didn=t witness this, did you?

Posada: No, sir.

Defense: You=re repeating what Arturo told you?

Posada: Yes, sir.

Defense: That=s just rank hearsay, isn=t it?

Posada: Yes, sir.

Defense: Now, if Arturo was telling you the truth in his statement, that Javier came and told him about this, that he gave him the napkin, that it had the six shells, if you thought that this--and then that Arturo went and buried them, okay, at his mother-in-law=s house on Grenoble Street, if this all is true--did you think it was true?

Posada: Yes, sir.

Defense: Then Arturo has now become a part of this crime. He=s being a party to this crime; isn=t that true? You know what a party is, don=t you?

 

Posada: Right. Not a party to the murder, maybe something else.

Appellant later called Detective Joe Baca to testify. On cross-examination, the State prosecutor asked Detective Baca how the gun ended up in Mr. Madrid, Jr.=s house and defense counsel objected on hearsay grounds. The trial court overruled the objection. Detective Baca then responded, AArturo Madrid, Jr. stated that Javier Madrid had come over to his house someday in April of 2002 and he told him about the shooting at the car wash.@ Defense counsel then objected on hearsay grounds. The trial court overruled this objection. Several questions later, defense counsel raised a confrontation clause objection to additional testimony concerning other statements made by Mr. Madrid, Jr., which the trial court overruled.

With respect to Detective Posada=s testimony, the record shows that Appellant later elicited the same evidence during his redirect examination without objection. Therefore, his complaint as to that matter on confrontation clause grounds is waived. See Ethington, 819 S.W.2d at 858. As for the complained-of statement during Detective Baca=s testimony, we observe that Appellant lodged only a hearsay objection to admission of this testimony. Defense counsel may have believed that a general hearsay objection was sufficient to preserve review of the issue, however, hearsay objections and confrontation clause objections are Aneither synonymous nor necessarily coextensive.@ Bunton v. State, 136 S.W.3d 355, 368 (Tex.App.--Austin 2004, pet. ref=d). As previously noted, a general hearsay objection does not preserve error on confrontation clause grounds. See Reyna, 168 S.W.3d at 179.

 

Even if Appellant had preserved any error in the admission of this complained-of testimony, we would nevertheless conclude that the error was harmless. An appellate court must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that error did not contribute to the conviction or punishment. See Tex.R.App.P. 44.2(a). Under this harm analysis, we calculate as much as possible the probable impact of the error on the jury in light of the existence of other evidence. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App. 2000); Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App. 1989). While the most significant concern must be the error and its effects, the presence of overwhelming evidence supporting the finding in question can be a factor in the evaluation of harmless error. Wesbrook, 29 S.W.3d at 119; see also Harris, 790 S.W.2d at 587-88 (outlining factors to consider).

 

Here, we first note that the State did not rely upon the complained-of testimony in its case-in-chief and placed very little emphasis upon it. In contrast, defense counsel mentioned Arturo Madrid Jr.=s statements to police in its closing argument, stating AJunior was claiming that Javier had confessed to him that he had shot him@ and A[t]here=s nothing to connect those casings to my client, nothing except his statement, Arturo=s statement.@ The record shows that the State instead relied upon the following circumstantial evidence to connect Appellant to the murder. Surveillance footage and eyewitnesses at the murder scene confirmed that the perpetrator was driving a two-toned Bronco similar to the one that Appellant had access to at the time of the murder. Mr. Madrid, Jr.=s former wife, Nancy Zamarripa, testified that she and Mr. Madrid, Jr. were living at 9232 Grenoble in April 2002, that Appellant was driving the Bronco, and that Mr. Madrid, Jr. did not have access to the Bronco at the time. Ms. Zamarripa had seen Appellant with a gun, which he kept in his closet at the Betel address. After months of investigation, the police received an anonymous Crime Stoppers tip, which described the gun and vehicle used in the car wash murder and identified Appellant as the perpetrator. The police confirmed that Appellant=s father pawned a .357 magnum caliber revolver and owned a Ford Bronco to which Appellant had access. Ballistics tests showed that the bullet fragments recovered from the victim=s body were shot from the pawned gun. DNA analysis showed a match between the blood found on the gun and that of the victim.

Raymond Arno, the supervisor at Appellant=s place of employment, testified that Appellant worked from 3 p.m. until 1 a.m. on April 25, 2002 and from 11:49 a.m. to 6:31 p.m. on April 26. Mr. Arno occasionally saw Appellant driving the two-toned Ford Bronco. Mr. Arno also testified that Appellant purchased the gun used in the offense from him in February 2002. After being interviewed by police in March 2003, Arturo Madrid, Jr., led the police to the backyard of a former residence where police located six spent shell casings that had been fired from the retrieved gun. In Appellant=s voluntary statement, he admitted to shooting the victim twice and then fleeing the scene in the Ford Bronco. Appellant then returned home to his apartment on Betel, cleaned the blood off the gun, and put the gun back into the closet. According to his statement, the next day Appellant told his brother Arturo that he had shot someone. Appellant admitted that in June 2002, he told his father to pawn the gun.

In our harm analysis, we find that the jury would have probably placed little weight on the alleged error and we do not think that a rational trier of fact would have reached a different result if the error had not occurred. See Harris, 790 S.W.2d at 588. Further, recognizing that overwhelming evidence of guilt is a favor to be considered, we conclude beyond a reasonable doubt that the admission of the alleged testimonial hearsay evidence did not contribute to Appellant=s conviction or punishment. Issue One is overruled.

We affirm the trial court=s judgment.

September 21, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

Barajas, C.J., Not Participating

(Do Not Publish)

 

[1] Appellant did not raise a due process claim as to the State=s failure to document by videotape or audiotape the taking of his statement at either the suppression hearing or in the motion to suppress his written statement.